Rent or mortgage payment problems
If you have missed your rent or mortgage payments, landlords and mortgage lenders may have the right to evict you. But the procedure for doing this, called 'possession proceedings' is quite long, and you should have enough time to come up with a plan to make reasonable repayments to your landlord or mortgage lender before the court gets involved.
If you have a second mortgage or a loan secured on your home that is regulated by the Consumer Credit Act 1974, and the lender refuses your payment plan, you may be able to get a 'time order' through the courts, which will let you keep your home. Under a time order, the court can reduce or even stop the interest that is mounting up on the money you owe, and reduce the instalments you pay to a level you can afford. You have to show the court that you are having genuine difficulty making the payments. You may also have to show that you would be able to pay the full instalments again at a later time. The court will grant you a time order only if it thinks this would be fair, after hearing how you and the mortgage or loan company have dealt with your debt.
Possession proceedings (eviction)
The possession procedure starts with a notice from your landlord or a solicitor's letter on behalf of your mortgage lender warning you that they could take you to court. After that you will receive a county court claim with a date and time for you to attend the local county court. At the court you will have to explain your situation to a judge and what you plan to do.
The court will need to see that you have missed payments, and that your landlord or mortgage lender used the proper procedures in trying to get the money you owe. If your landlord has not done something they should have done for you (for example, repairs your house or flat), the court may not make a possession order.
If you are a local authority (council) tenant, and your tenancy is not an 'introductory tenancy', the court must decide whether it is reasonable to make a possession order. In coming to its decision, the court will consider factors such as your recent payment history and the steps you have taken to try to sort out your rent arrears.
If your landlord or mortgage lender proves their case, then the court usually grants a possession order. If you can offer some money towards the arrears (the amount you owe) on top of the normal payments, the court will normally make a 'postponed' or a 'suspended' possession order. This means the landlord or mortgage lender won't be able to evict you, as long as you make the payments stated in the order.
The court can allow you to pay off missed mortgage repayments over the years you have left on your mortgage if it believes this would be the fairest thing to do. It can also let you clear any payments you've missed on your council rent, depending on how much you can afford to pay.
If you then miss payments, the landlord or mortgage lender can ask for an eviction warrant. You won't be warned of the warrant beforehand, although the court should warn you of the eviction date. At this stage, you can still ask for a court hearing to ask the judge to call off (suspend) the eviction. You should do this as soon as possible before your eviction is due. You will need specialist legal help if you are in this situation.
In some situations this procedure does not apply, and the court can automatically award the landlord possession, which cannot be suspended or postponed. This happens if you have:
- an 'assured' or 'assured shorthold' tenancy and you have missed more than two months' rent payments; or
- an 'introductory tenancy' from a public landlord (a local council or other registered social landlord).
Also see the Community Legal Advice leaflet 'The Human Rights Act', which explains the Act and how it may affect you. This law gives everyone the right to 'respect for privacy and family life, home and correspondence'. It doesn't mean you cannot be evicted, but in light of the Act the courts may see eviction as a last resort.
Additional sections in the Community Legal Advice leaflet 'Debt and Bankruptcy':
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